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Home My WebLink About2006-051 THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON BY-lAW 2006-051 Being a by-law to authorize the execution of the Stevens Road Extension Agreement between Players Business Park Ltd. and West Diamond Properties Inc. and Halloway Holdings Limited and The Corporation of the Municipality of Clarington WHEREAS at their meeting held on March 1,2006, the Council of the Municipality of Clarington adopted Official Plan Amendment 43, Official Plan Amendment 44, Zoning By-law Amendment 2006-046 and Zoning By-law Amendment 2006-047 as they apply to certain lands owned by Players Business Park Ltd. and West Diamond Properties Inc. (Players-West Diamond) and Halloway Holdings Limited (Halloway), respectively; AND WHEREAS Players-West Diamond and Halloway respectively have entered into separate Principles of Understanding with the Municipality of Clarington regarding the development of their respective portions of the Owners' Commercial land and other matters; NOW THEREFORE THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON HEREBY ENACTS AS FOllOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, the Stevens Road Extension Agreement between Players-West Diamond, Halloway and said Corporation; and 2. THAT the indemnity agreement attached hereto as Schedule "A" forms part of this by-law. By-law read a first and second time this 1 sl day of March 2006. By-law read a third time and finally passed this 1 sl day of March 2006. STEVENS ROAD EXTENSION AGREEMENT THIS STEVENS ROAD EXTENSION AGREEMENT made as of the 1 st day of March, 2006. BETWEEN: PLAYERS BUSINESS PARK LTD. and (hereinafter called "Players") WEST DIAMOND PROPERTIES INC. (hereinafter called "West Diamond") (Both collectively hereinafter called "Players-West Diamond") OF THE FIRST PART - and - HALLOWAY HOLDINGS LIMITED (hereinafter called "Halloway") OF THE SECOND PART - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE THIRD PART WHEREAS: A. Players-West Diamond and Halloway (hereinafter sometimes referred to collectively as the "Owners" and individually as an "Owner"), respectively, are the owners of certain lands, portions of which are located in the Bowmanville West Town Centre designated by the Municipality's proposed Official Plan Amendments 43 and 44 ("OP A 43" and "OP A 44"). OP A 43 and OPA 44 were adopted by the Municipality's Council at its meeting on March 1, 2006. These lands are designated "General Commercial" and "Street-Related Commercial" by OP A 44. - 2 - They are referred to individually as the "Owner's Commercial Lands" and collectively as the "Owners' Commercial Lands". Copies of OPA 43, OPA 44 and Zoning By-law Amendments 2006-046 and 2006-047 are contained in Schedule "A" to each of the Principles of Understanding referred to in Recital D of this Agreement; B. The titles to the Owners' Commercial Lands referred to in Recital A are registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) and comprise portions of the lands identified by the following Property Identification Numbers ("PIN"): PIN # 26612-0113 26612-0114 26612-0024 26613-0106 26613-0107 26613-0033 26613-0034 26613-0035 Owner Players West Diamond Players Halloway Halloway Halloway Halloway Halloway C. This Agreement deals with the construction of the planned Stevens Road Extension between Durham Road 57 and Green Road. It is shown on Map "B" attached to proposed OPA 44; D. Players-West Diamond and Halloway, respectively, have entered into separate Principles of Understanding with the Municipality which were made as of March 1, 2006 regarding the development of their respective portions of the Owners' Commercial Lands and certain other matters; E. Each of the Principles of Understanding referred to in Recital D provides for its unwinding in the circumstances set out in paragraph 2 of each of the Principles of Understanding and also provides for their termination under certain circumstances as set out in paragraph 22 of the Halloway Principle of Understanding and paragraph 23 of the Players-West Diamond Principles of Understanding; - 3 - F. The term "Final Approval" when used in this Stevens Road Extension Agreement has the same meaning as it has in the two Principles of Understanding referred to in Recital D, except that when the term "Final Approval" is used in this Agreement in reference to an Owner's Commercial Lands, it shall be deemed to refer to the lands owned by that Owner in respect of whose lands the Principles executed by that Owner apply, and when the term "Final Approval" is used in this Agreement in reference to the Owners' Commercial Lands, it shall be deemed to refer to the lands to which the combination of the lands referred to in both of the Principles apply; G. The term "Total Floor Area" has the same meaning as it has for the purposes of the Municipality's Zoning By-law, By-law 84-63, as amended, except that in the case of lands within a Large Format Commercial (C8) Zone established by Zoning By-law Amendment 2006- 047, the area of a permitted "garden centre" as defined in section 22A.l(a)(vi) which is added to the aforesaid By-law 84-63 by section 2 of Zoning By-law Amendment 2006-047, shall be excluded from the calculation of the total floor area of buildings or structures, provided that the required parking is provided; and H. The execution of this Stevens Road Extension Agreement by the Mayor and Municipal Clerk is authorized by By-law 2006-051 passed by the Municipality's Council at its meeting on March 1, 2006, NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the other Parties as follows: RECITALS 1. Each of Recitals A to G is hereby incorporated into the operative part of this Stevens Road Extension Agreement and each shall be construed as covenants contained in this Agreement. - 4 - FINANCING, TIME OF CONSTRUCTION AND MAINTENANCE AND REPAIR OF DEVELOPER- FUNDED SECTION OF STEVENS ROAD EXTENSION 2. (a) Players- West Diamond and Halloway, respectively, shall pay to the Municipality the cost of construction of the Stevens Road Extension between Green Road and Clarington Boulevard (the "Developer-Funded Section") as provided in this Agreement. (b) The Municipality shall be responsible to undertake the design and construction of both the Developer-Funded Section and the Municipally-Funded Section of the Stevens Road Extension and shall commence construction of them at the time specified in paragraph 3, provided that Players-West Diamond and/or Halloway provide the Municipality with the funds required for the design and construction of the Developer-Funded Section as provided for in this Agreement. The Municipality acknowledges that it shall be responsible for the maintenance and repair of the Stevens Road Extension at its cost, unless and until it is permanently closed as a public highway, and the Owners shall not be responsible for the maintenance and repair of the Stevens Road Extension. CONSTRUCTION OF MUNICIPALLY-FUNDED SECTION OF STEVENS ROAD EXTENSION FROM DURHAM ROAD 57 TO CLARINGTON BOULEVARD 3. The Municipality acknowledges that it will acquire any necessary land and construct at its cost the section of the Stevens Road Extension between Durham Road 57 and Clarington Boulevard ("Municipally-Funded Section"). It will not require Players-West Diamond and Halloway to contribute to the cost of the Municipally-Funded Section other than pursuant to the Development Charges By-law 2005-108 of the Municipality or the annual tax levy of the Municipality. Construction of the Municipally-Funded Section will be commenced by the Municipality as soon as is reasonably practicable after the later to occur of the date on which Final Approval of OPA 43, OPA 44, Zoning By-law Amendments 2006-046 and 2006-047as they apply to either of the Owner's Commercial - 5 - Lands or the Owners' Commercial Lands is received, and the date on which an Owner gives the Municipality written notice that it intends to develop a "Large Format Retail Store" containing a minimum of 2,600 square metres of Total Floor Area on any portion of the Owner's Commercial Lands and waives its right to terminate the Principles of Understanding which it has executed with the Municipality. COST OF CONSTRUCTION OF DEVELOPER-FuNDED SECTION 4. The parties acknowledge that the current estimated cost of construction of the section of the Stevens Road Extension between Clarington Boulevard and Green Road ("Developer- Funded Section") to an "Urban Profile" (as defined in Schedule "A" hereto) ("Urban Profile Works") is Five Hundred Ninety-Six Thousand One Hundred and Thirty-Six ($596,136.00) Dollars ("Urban Profile Works Cost Estimate"). The current estimated cost of construction of the Developer-Funded Section to a "Rural Profile" as defined in Schedule "B" hereto ("Rural Profile Works") is Three Hundred Twenty-One Thousand Six Hundred and Forty-Four ($321,644.00) Dollars ("Rural Profile Works Cost Estimate"). The assumptions used for the calculations of the Urban Profile Works Cost Estimate and the Rural Profile Works Cost Estimate are set out in Schedule "C" hereto. OWNERS' PAYMENTS TO BE SECURED BY PERFORMANCE GUARANTEE 5. The performance guarantee ("Performance Guarantee") referred to in this Stevens Road Extension Agreement to be provided by each Owner pursuant to this Agreement to secure obligations to the Municipality hereunder shall either be cash (which shall be deposited in a segregated reserve account by the Municipality) or an irrevocable and unconditional letter(s) of credit issued by a bank listed in Schedule I or II of the Bank Act in a form and containing terms and conditions that are acceptable to the Municipality's Director of Finance. The amount of each Owner's Performance Guarantee shall be as provided for in this Agreement and shall be adjusted from time to time as provided in this Agreement. - 6 - NOTICES RESPECTING THE DEVELOPER-FuNDED SECTION 6. Prior to or concurrently with the enactment by the Municipality (or if an appeal is made respecting the removal of the H (Holding) symbol to the Ontario Municipal Board, by the Board) of any amendment to Zoning By-law Amendment 2006-047 to remove the H (Holding) symbol from any portion of the Owners' Commercial Lands on which a Large Format Retail Store is permitted, such Owner (the "Initiating Owner") shall give written notice (the "First Notice") to the other Owner and the Municipality stating that it intends to provide the funding for the construction of the Developer-Funded Section. Within fifteen (15) days after the First Notice is given, the other Owner to whom the First Notice is given (the "Responding Owner") shall give written notice (the "Second Notice") to the First Owner and the Municipality stating whether it will: (a) provide its share of the funding of the Urban Profile Works Cost Estimate in accordance with paragraph 7 (the "Urban Profile Option"); or (b) pay the costs of upgrading the Developer-Funded Section from a Rural Profile to an Urban Profile in accordance with paragraph 9 (the "Rural Profile Option"). If the Second Notice is not delivered within such fifteen (15) day period, the Responding Owner shall be deemed to have selected the Rural Profile Option. FUNDING REQUIRED FOR URBAN PROFILE OPTION 7. If the Responding Owner selects the Urban Profile Option, then each Owner shall be responsible to pay to the Municipality fifty per cent (50%) of the costs of the design and construction of the Urban Profile Works, and shall, not later than thirty (30) days following the date that the First Notice is delivered, deposit with the Municipality a Performance Guarantee in an amount equal to fifty per cent (50%) of the Urban Profile Works Cost Estimate which shall be used by the Municipality to pay such costs in accordance with paragraph 13 of this Agreement. - 7 - FUNDING REQUIRED FOR RURAL PROFILE OPTION 8. In the event that the Responding Owner selects the Rural Profile Option, then the Initiating Owner shall be responsible to pay to the Municipality the costs of the design and construction of the Rural Profile Works. Not later than thirty (30) days following the date that the First Notice is delivered, the Initiating Owner shall deposit with the Municipality a Performance Guarantee in an amount equal to one hundred per cent (100%) of the Rural Profile Works Cost Estimate which shall be used by the Municipality to pay such costs in accordance with paragraph 13 of this Agreement. FUNDING REQUIRED TO UPGRADE RURAL PROFILE TO URBAN PROFILE 9. If the Responding Owner selects the Rural Profile Option, then the Responding Owner shall be responsible to pay to the Municipality one hundred (100%) per cent of the costs of upgrading the Developer-Funded Section from a Rural Profile to an Urban Profile (the "Rural to Urban Upgrade Works"), and shall deposit with the Municipality a Performance Guarantee in an amount equal to the one hundred (100%) per cent of the estimated costs thereof (the "Rural to Urban Upgrade Works Cost Estimate") prior to the submission of an application to the Municipality to amend Zoning By-law Amendment 2006-_ to remove the H (Holding) symbol from any portion of the Owner's Commercial Lands of the Responding Owner. REVISED WORKS COST ESTIMATES AND ADDITIONAL PAYMENTS 10. (a) Prior to the payment to the Municipality of the As-Constructed Costs of the Urban Profile Works, the Rural Profile Works, or the Rural to Urban Upgrade Works as contemplated by this Agreement, the Municipality's Director of Engineering Services may from time to time give written notice to each of Players- West Diamond and Halloway respectively, of his revised cost estimate for the construction of the Urban Profile Works ("Urban Profile Revised Works Cost Estimate"), the Rural Profile ("Rural Profile Revised Works Cost Estimate") - 8 - and/or the Rural to Urban Upgrade Works ("Rural to Urban Upgrade Revised Works Cost Estimate"), together with an explanation of the reason for the revised cost estimate. The amount to be paid for the design and construction of the Urban Profile Works, the Rural Profile Works and/or the Rural to Urban Upgrade Works and the amount of each Owner's required Performance Guarantee shall be deemed to be the amount of any Urban Profile Revised Works Cost Estimate, Rural Profile Revised Works Cost Estimate or Rural to Urban Upgrade Revised Works Cost Estimate, as the case may be. Following the giving of notice pursuant to this paragraph, the latest Urban Profile Revised Works Cost Estimate, the latest Rural Profile Revised Works Cost Estimate and/or the latest Rural to Urban Upgrade Revised Works Cost Estimate shall be deemed to be the Urban Profile Works Cost Estimate, the Rural Profile Works Cost Estimate and the Rural to Urban Upgrade Works Cost Estimate, as the case may be, for the purposes of this Agreement. (b) If the Municipality's Director of Engineering Services gIves to the Owners written notice of the Urban Profile Revised Works Cost Estimate subsequent to the Owners having deposited Performance Guarantees with the Municipality pursuant to paragraph 7, then each Owner shall deposit with the Municipality an additional Performance Guarantee in an amount equal to fifty (50%) per cent of the amount of the increase in the Urban Profile Works Cost Estimate within thirty (30) days of such notice. (c) If the Municipality's Director of Engineering Services provides to an Owner written notice of a Rural Profile Revised Works Cost Estimate or a Rural to Urban Upgrade Revised Works Cost Estimate subsequent to the responsible Owner having deposited a Performance Guarantee with the Municipality pursuant to paragraph 8 or 9, as the case may be, then the responsible Owner shall deposit with the Municipality an additional Performance Guarantee in an amount equal to one hundred (100%) per cent of the amount of the increase in the Rural Profile Works Cost Estimate or the Rural to Urban Upgrade Revised Works Cost Estimate, as the case may be, within thirty (30) days of such notice. - 9 - AS-CONSTRUCTED COSTS 11. Upon completion of the Urban Profile Works, the Rural Profile Works or the Rural to Urban Upgrade Works, as the case may be, the Municipality's Director of Engineering Services shall give Players-West Diamond and Halloway written notice that the Stevens Road Extension has been completed and dedicated as a public road by By-law passed pursuant to the Municipal Act, 2001 ("Completed"). No later than the ten (10) days following the date on which this written notice is given to the Owners, the Municipality's Director of Engineering Services shall give written notice to Players-West Diamond and Halloway of the as-constructed costs thereof. If the as-constructed costs exceed the Urban Profile Works Cost Estimate, the Rural Profile Works Cost Estimate, or the Rural to Urban Upgrade Works Cost Estimate, whichever is applicable, forthwith after written demand is given to it by the Municipality the Owner that is responsible for the costs thereof pursuant to paragraph7, 8 or 9, shall pay the Municipality any amount by which such as-constructed costs exceed the Urban Profile Works Cost Estimate, the Rural Profile Works Cost Estimate, or the Rural to Urban Upgrade Works Cost Estimate, as the case may be ("As-Constructed Payment"). If the as-constructed costs are determined by the Municipality's Director of Engineering Services to be less than the Urban Works Cost Estimate, the Rural Profile Works Cost Estimate or the Rural to Urban Upgrade Works Cost Estimate, whichever is applicable, the Municipality shall return any Performance Guarantee not required for the payment of the design and construction costs of the Urban Profile Works, the Rural Profile Works or the Rural to Urban Upgrade Works within thirty (30) days after written notice is given pursuant to this paragraph by the Director to the Owner or the Owners, as the case may be. MUNICIPALITY TO CONSULT WITH OWNERS 12. The Municipality will consult with the Owners or their consulting engineers in respect of the design of and preparation of the tender documents for the Urban Profile Works, the Rural Profile Works and the Rural to Urban Upgrade Works, and in respect of any extras or change orders requested to the construction contracts therefor. During regular business - 10- hours of the Municipality, at a time to be arranged with the Municipality's Director of Engineering Services in advance not less than one (1) week prior to the call for tenders by the Municipality or prior to the issuance of a change order or extra to the construction contract, as the case may be, the Owners shall be given the opportunity to inspect such plans and documentation as may be reasonably required for such consultation. USE OF FUNDS BY THE MUNICIPALITY 13. (a) The Municipality shall: (i) use the performance Guarantee and the As-Constructed Payments provided by the Owners in respect of the Urban Profile Works Cost Estimate only to pay for costs actually incurred in respect of Urban Profile Works, and shall pay fifty per cent (50%) of each such cost incurred from the Performance Guarantees and/or the As-Constructed Payments provided by each Owner; (ii) use the Performance Guarantee and As-Constructed Payments provided by the Initiating Owner in respect of the Rural Profile Works Cost Estimate only to pay for costs actually incurred in respect of Rural Profile Works; and (iii) use the Performance Guarantee and As-Constructed Payments provided by the Responding Owner in respect of the Rural to Urban Upgrade Works Cost Estimate only to pay for costs actually incurred in respect of Rural to Urban Upgrade Works. (b) During regular business hours of the Municipality, at a time to be arranged in advance with the Municipality's Director of Engineering Services, the Owners may inspect copies of such documentation as may be reasonably required to verify the costs so incurred by the Municipality (including copies of invoices, approved purchase orders and/or certified progress certificate in respect of such costs). - 11 - CONSEQUENCES OF DEF AUL T 14. In the event that either or both of Players-West Diamond and Halloway fail to provide any Performance Guarantee or make any payments to the Municipality required pursuant to this Agreement within the time periods required herein, the Owner in default shall not apply for or require the issuance of any permit for the construction of or occupancy by or occupy any Large Format Retail Store on any portion of the said Owner's Commercial Lands pursuant to the Ontario Building Code Act until such Performance Guarantee or payments (including the payment of any interest that has accrued pursuant to paragraph 15) have been fully deposited or made. UNPAID MONIES 15. Except as otherwise provided in this Agreement, the due date of any money payable under it, unless a different due date is specified in this Agreement, shall be ten (10) days after the date of the giving of written notice by the Municipality to Players- W est- Diamond and/or Halloway, as the case may be. Where an Owner is in default in respect of such payment, interest shall be calculated and be paid to the Municipality by the Owner in default on all sums for the Owner is in default at the same rate, and in the same manner, and at the same time as is the case with municipal taxes which are in arrears at the date on which the default in question commences. OBLIGATIONS NOT JOINT 16. The obligations of each of Players-West Diamond and Halloway under this Stevens Road Extension Agreement are several, and not joint or joint and several. - 12- CONDITION TO CONSENT TO DIVIDE OR ApPROVAL OF DRAFT PLAN 17 . Players-West Diamond and Halloway hereby irrevocably consent to the imposition of a condition by the Region of Durham Land Division Committee on an application for provisional consent to divide their respective lands comprising a portion of the Owners' Commercial Lands or by the approving authority under the Planning Act on the approval of a draft plan of subdivision which would divide any such lands into lots or blocks, requiring the deposit of the Performance Guarantee required by paragraphs 7, 8 and 9 of this Agreement. ACTING REASONABLY 18. All discretionary decisions of officials of the Municipality and the Municipality which are referred to in this Agreement shall be deemed to be qualified by the words "acting reasonably" . ASSUMPTION AGREEMENT REQUIRED 19. (a) Players- West Diamond and Halloway severally covenant and agree with the Municipality that until the Performance Guarantees required by paragraph 7 of this Agreement are deposited with the Municipality, it shall be a general and indispensable condition of any sale, mortgage or charge or a lease for a term including entitlement to renew of 21 years or more either ofthe whole or anyone or more portions of the Owners' respective lands or any assignment or sublease of such a leasable interest with an unexpired term including entitlement to renew of 21 years or more of the whole or anyone or more portions of such lands, that each proposed transferee, mortgagee, chargee, lessee, assignee or sub-lessee, as the case may be, has entered into an agreement with the Municipality prior to and conditional on the transaction in question taking place assuming each of their obligations and covenants provided for in this Agreement ("Assumption Agreement"). Where a mortgage, charge, lease, assignment of lease or sublease of a leasehold interest is given by way of security for financing then such mortgagee, - 13- chargee, lessee, assignee or sub-lessee, thereunder shall not be bound to assume Players', West Diamond's, Halloway's or an assuming party's ("Assuming Party") as the case may be, obligations and covenants, unless and until such mortgagee, chargee, lessee, assignee or sub-lessee takes possession or control of the property pursuant to such security. Where the obligations and covenants of a party to this Agreement other than the Municipality have been assumed unconditionally by a transferee, lessee, assignee or sub-lessee, as the case may be, who has acquired all or a portion of the Owner's Commercial Lands and has entered into an Assumption Agreement with the Municipality, then the Owner is hereby released from its obligations and covenants hereunder to the extent that such obligations and covenants have been so assumed. (b) Concurrent with the delivery of this Agreement by each of Players, West Diamond and Halloway to the Municipality, each of them shall deliver to the Municipality an application duly executed by such Owner in registerable form and containing such terms as the Municipality's Solicitor, acting reasonably, requires made pursuant to section 118 of the Land Titles Act to restrict the transfer, charge or lease, assignment of lease or sub-lease of a leasehold in one of the Owner's Commercial Lands or any portion thereof without the prior written consent of the Municipality. The Owner or an Assuming Party, as the case may be, shall request the consent of the Municipality by notice in writing given to the Municipality not later than three (3) weeks prior to the date specified in the notice of a proposed transfer, mortgage, charge, lease, assignment of lease or sublease of a leasehold interest, as the case may be. The written consent of the Municipality shall be granted and the Municipality shall notify the Land Registry Office of that fact prior to the date ofthe proposed transfer, mortgage, charge, lease, assignment or sub-lease of a leasehold interest, as the case may be, provided that (i) the provisions of paragraph 19(a) are satisfied, and (ii) any necessary Assumption Agreement has been made by the proposed transferee, mortgagee, chargee, lessee, assignee or sub-lessee, as the case may be. - 14 - (c) On the deposit with the Municipality of the Performance Guarantees required in paragraphs 7 or 8 and 9, whichever is(are) applicable, paragraphs 19(a) and 19(b) shall terminate and have no further force or effect and the Municipality shall cooperate with and execute any necessary documents prepared by the Owners in their application to expunge the Notice under section 118 of the Lands Titles Act from the title to the Owners' respective lands. Any necessary reference plan of surveyor amendment thereto required to accomplish this end shall be prepared and deposited on title at the cost of the Owner or an Assuming Party, as the case may be. NOTICE 20. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to the Owners by this Agreement, or by an Owner to the Municipality, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: The Owners: Players- West Diamond: c/o West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis and: c/o Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON UK 383 Attention: Mr. Bruce Fischer and: Halloway: Halloway Holdings Limited. 177 Nonquon Road 20th Floor Oshawa, ON L1G 382 - 15 - OR, To the Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON LIC 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which either party has notified the other party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE 21. "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the Owners, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. The Owners shall notify the Municipality of the commencement, duration and consequence (so far as the same is within the knowledge of the Owners) of any Force Majeure - 16 - affecting the performance of any of its obligations hereunder within thirty (30) days of such knowledge. UNWINDING OR TERMINATION OF AGREEMENT 22. (a) If both the Principles of Understanding dated March 1, 2006 between Players- West Diamond, 1613881 and the Municipality and the Principles of Understanding also dated March 1, 2006 between Halloway and the Municipality unwind or terminate as provided therein, save for the provisions of this paragraph 22, this Stevens Road Extension Agreement shall unwind and shall have no further effect on the day on which the latest of such Principles of Understanding to unwind or to terminate, unwinds or terminates. If this Agreement unwinds, no later than sixty (60) days after the date on which this Stevens Road Extension Agreement unwinds, the Performance Guarantees provided to the Municipality to the extent that they have not been used in accordance with this Agreement will be returned without interest by the Municipality to the party who paid them to the Municipality. (b) If one only but not both of the Principles of Understanding between Players, West Diamond, 1613881 and the Municipality and the Principles of Understanding between Halloway and the Municipality unwinds or terminates pursuant to its provISIOns: (i) the provisions of this Stevens Road Extension Agreement shall continue to apply, save that all references to and to the duties of the party to the Principles of Understanding which has unwound or terminated shall be deemed to be references to the party to the Principles of Understanding that has not unwound or terminated and remains in effect. All necessary changes to this Stevens Road Agreement shall be deemed to have been made in order to give effect to the intent of this paragraph 22(b)(i); and (ii) the Owner respecting whose Principles of Understanding with the Municipality have not unwound or terminated, shall be responsible to pay - 17 - for the costs of constructing the Rural Profile Works pursuant to paragraphs 8, 10 andll, and on payment of the Performance Guarantee to the Municipality as provided in paragraphs 8 and 10 and any amount required to be paid to the Municipality pursuant to paragraph 11, that Owner shall be deemed to be released from its duty to pay an amount equal to one-half the cost of the Urban Profile Works. (c) If an Owner's Principles of Understanding has unwound or terminated, the Municipality shall execute at that Owner's request such documents prepared by the Owner as are necessary to remove the registration ofthis Agreement or Notice thereof and the Notice under section 118 of the Land Titles Act referred to in paragraph 19(c) from the title to that Owner's Commercial Lands. (d) For the purposes of this paragraph 22, the Players-West Diamond Principles of Understanding shall be deemed to have terminated upon the delivery by Players- West Diamond or the Municipality of a notice of termination in accordance with the provisions of paragraph 23(a) of the Players-West Diamond Principles of Understanding, and the Halloway Principles of Understanding shall be deemed to have terminated upon the delivery by Halloway or the Municipality of a notice of termination in accordance with the provisions of paragraph 22(a) of the Halloway Principles of Understanding. REGISTRATION 23. The parties hereto other than the Municipality consent to the registration of a Notice of this Agreement as a charge against the title to the Owners' Commercial Lands. Forthwith after an Owner has satisfied its obligations pursuant to this Agreement, the Municipality shall execute at the Owner's written request, such documents prepared by that Owner as are necessary to remove the registration of this Agreement or Notice thereof from title to that Owner's Commercial Lands. - 18 - TERMINATION OF AGREEMENT 24. Without derogating from paragraph 22 and except paragraphs 11 and 15 which shall survive its termination under this paragraph 24, this Agreement shall terminate on the day on which written notice that the Stevens Road Extension has been Completed is given by the Municipality's Director of Engineering Services pursuant to paragraph 11. Without derogating from the provisions of paragraph 23, forthwith thereafter the Municipality shall execute at the Owner's written request, such documents prepared by that Owner as are necessary to remove the registration of this Agreement or Notice thereof and the Notice under section 118 of the Land Titles Act referred to in paragraph 19( c) from the title to that Owner's Commercial Lands. TIME OF THE ESSENCE 25. Time is of the essence of this Agreement. AUTHORITY OF MUNICIPALITY 26. Players, West Diamond and Halloway acknowledge and agree that the Municipality has authority to enter into this Agreement, that every provision hereof is authorized by the law and fully enforceable by the parties, and that this Agreement is executed by the Municipality in reliance on the acknowledgement and agreement of Players, West Diamond and Halloway as aforesaid. STATUS STATEMENT 27. Within ten (10) days of receiving a written request from any Owner, the Municipality shall provide a written statement either confirming that the requesting Owner is in good standing and not in default of any provisions of this Agreement, or setting out the manner and extent to which such requesting Owner is in default. The statement shall also - 19 - confirm the total amounts of the Performance Guarantee and payments that have been made by the requesting Owner to the Municipality pursuant to this Agreement. FURTHER ASSURANCES 28. The parties hereby covenant and agree to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out (and give effect to) the true intent of this Agreement, and to effect the registration against and release from title to the lands subject to this Agreement of such notices or other instruments in accordance with the provisions of this Agreement. ENUREMENT 29. This Agreement shall enure to the benefit of and be binding on the Parties hereto, and their respective successors and assigns. COUNTERPART EXECUTION 30. This Agreement may be executed in counterparts. - 20- IN WITNESS WHEREOF the Parties hereto have hereunto have set their hands and seals the day and year first above written and the Parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND ) ORATION OF THE DELIVERED ) ITY OF CLARINGTON ) In the presence of: ) ) ..--- ) ) ) ) ) ) WEST DIAMO ) ) ) Name: Title: ) ) Name: Title: ) ) PLAYERSBU ) ) ) Name: Title: ) ) Name: Title: ) / / Ff) ~!I ) Y HOLDINGS I;FD, l/ ;1, J ) ) ) Title: ? ) Title: ) SCHEDULE "A" Developer-Funded Section of Steven Roads Extension - Urban Profile The term "Urban Profile" means the following: Roads and Storm Sewers 1. Site Preparation 2. Earth Excavation (1m depth) 3. Granular 'A' (150mm) 4. Granular 'B' (450mm) 5. 40mm HL3 6. 80mm HL8 7. Curb and Gutter 8. Subdrain 9. Storm Sewer Pipe 10. Catch Basins 11. Catch Basin Leads 12. Storm Sewer Manholes 13. Contingencies 14. Design 15. Contract Administration Streets cape 1. Decorative Street Lights 2. Concrete Sidewalk 3. Concrete Sidewalk (2.0m Width) 4. Topsoil 5. Trees 6. Contingencies 7. Design 8. Contract Administration SCHEDULE "B" Developer-Funded Section of Stevens Road Extension - Rural Profile The term "Rural Profile" means the following: Roads and Storm Sewers 1. Site Preparation 2. Earth Excavation (1m depth) 3. Granular 'A' (150mm) 4. Granular 'B' (450mm) 5. 40mm HL3 6. 80mm HL8 7. Storm Sewer Pipe 8. Catch Basins 9. Catch Basin Leads 10. Storm Sewer Manholes 11. Contingencies 12. Design 13. Contract Administration Streetscape 1. Decorative Street Lights 2. Topsoil and Sod 3. Contingencies 4. Design 5. Contract Administration SCHEDULE "C" Urban Profile Works Cost Estimate and Rural Profile Works Cost Estimate (Attached) i I I W I- <C :E ~~- CI) I i ~I i <C CI), I W o! ! 0:: 0 ~-- <C z' I z..Joll ~ ~ ~i I 1ft I- 0 1 ! _ W' 1 ZZCI)I,_- ~ ~ ~!T ..J~oi I O<CO::II U.:EZI: Ol-<C I >-CI)m ' I-WO:: ::i3:::> <CWZ O-..Jo O..J- -CI) z>z ::>ZW :E~t< 3:W 00 m<C o 0:: CI) Z W > W I- CI) CD (,) ... ~ o CI) tn C "0 C ~ U. tn~ .~ C "0 .- ~ E (j"Om C <C .- --(,) _(,)c ~ ~ & o o.~ eo'C: - ~ 0 CDCO :E .2' ... m CD CD 0-0 "0= cu tn- o c E 0:: CD- ..J c o :;:; 0. .~ (,) m CD o :, c ... 0 CD .- 0.- o ~ _.0 CD .- >b CD c o 0 o c o - tn. c~ .~ C ~ o - - S m o 0 1-0 cu_ (,) In J!J 0 CDO e CD -0. CI) P ~ E " ... ~( . c .s CD tn = C tn .~ c~ ,,20 cu 0 "0- ~"C o CO ex: 0 me:: c c CD CD > CD CD ... -C) ~ E o 0 c~ ~~ (,)O'ij 2e::... - C') CO In C > C CD o+:i3 (,) .~ 0 CD><- O::CDal <.0 ("') ...... <.0 0) L(') fJ7 01 l"- I"- ...... fJ7 01 ...... I <.01 fJ7 I o <.0 ...... ...... fJ7 I 00' <.0 ("') ("') I I "0 1:: co c: o +-' en c: 'C ~ 0, 01 +-' I "0 0::: c: Q) Q) ... (91 I CD ("') ...... CD 0) LO fJ7 ! s o I- "C C co ... C) . _~~____ l_ I Iii 21-Sep-05 ___________~_________~______~____'______-.-l-~~--L-------~- -- --------------------- MUNICIPALITY OF CLARINGTON -- --~- ------------ BOWMANVILLE WEST MAIN CENTRAL AREA -- UNIT COST PER METRE TO CONSTRUCT STEVENS ROAD 9.5m WIDTH URBAN SECTION ----T---~__r_---~--~~--~-I----~~--- I ! J!~ Spec. 1-__ _~_.Qescrip!ion of Item Estimated 1--- Unit I-_Y!'it Pric~ Total 1------- ..--- ~-~~~- No. No. Quantity ---- 1------- -- ~~-~.~ - ~---~- 1---- - ROADS & STORM SEWERS 1--- -~--- -- -~~~- -------' ~---- ----- 1---- -------- --,..------~ -_.---~- --- --~--~- --~------ ~~~ -----_..~ 1. SITE PREPARATION ---- $10.00 ---- -------- ~._~----~-------_._--~- f---~-- --,--" -- ~--- - ___n___ --------- 1--- -- 2. 0 EARTH EXCAVATION (1m depth) --J.Q..~Q.. CU.M. 8.00 $87.20 ---_._--- -- -----..--. -- - f----- ----- -- ---- ---,--.- - f-----~ 1--- 3. GRANULAR 'A' (150mm) 3.76 T 18.00 $67.72 ---- 1------ --~- --- ~--~ -- 4. GRANULAR 'B' (450mm) 11.87 T 12.00 $142.44 -- - 5. 0 40mm HL3 1.02 T 65.00 $66.57 --------- ----- I - 6. 80mm HL8 2.05 T 57.00 $116.75 7. CURB & GUTTER 2.00 M 45.00 $90.00 -- 1------- -- 8. SUBDRAIN 2.00 M 10.00 $20.00 -- ~-~-- - -- ----- 9. STORM SEWER PIPE 0.67 M 200.00 $134.00 -- 10. CATCH BASINS 0.03 EA 1800.00 $48.24 -- 11. CATCH BASINS LEADS ____ OJ_~ M 125.00 $15.91 --~- -- -~..- 1--- 12. STORM SEWER MANHOLES 0.02 EA 4000.00 $67.00 I- 1---- --- --- ,-- --- _._._- t----~---~--------- -- -- - ~ TOTAL ROADS & STORM - 1--- $865.82 --~- -- USE $900.00 ---- 1------- ----------~--~----- 1--- -.---- ------- --.-------.- ...----------------------.----- ---- I-----~--- t------ -- --;---- ------------ --- ~----- -------_._-~.__.-------- -------.--.-- -----_.~ t------------ I----~-- ----- Contingencies -------- 10.00% $86.58 _._---~- c----------- ------ ------ --- Design 7.00% $60.61 - Contract Administration 10.00% 1------ $86.58 -- --~ 1----- -------- TOTAL RpADS ANI?_ST9RM _____ 1------- _~_ 1--____ $1,099.60 1----- Plus 5% 2006 Cost Estimate $1,160.00 _~_~~_________________ i _~_~~u___L___1-_11-?ep-O~_ ----- ~ MUNICIPALITY OF CLARINGTON --- ____~ BOWMANVILLE WEST MAIN CEN,!RAL AREA~ _ _. ~__~TEVENS ROAD STEETSCAPE TREATMENT - TYPE 1 - FULL TREATMENT-----T---- I -- ~-- I I I Item Spec._J:>escription of Item l:stimatec Unit Unit PricE Total -- ------~- --~-------~-- No. No. Quantitv ~--~------ I---- ~ ---- ________________I--~____ --------~ ---------- ___n___ ------------ STREETSCAPE _ _ __ _ _ ______________~_c----_ _______~__~__ ----1--------- ----- ------- ~---~--------~-~ ---------~--------- --------- -~-~- ~____ ~~CORATI\.(E STREE~T LLGHTS____ _...Q.O~_ ___~~____ ~OQ.OO_ __ $1~.00 _____ 1--_____ f--------~-~------~---- -- --f----------~ ------ 2. TREE GUARDS ____________ __ O.OQ. EA 400.0Q.. _ $0.00 ----- 3. n_ 4. ---- 5. I 6. 7. 8. 9. 10. 11. 11. TREE GRATES ----~--~ -~-- ---- 0.00 EA 800.00 ____n__ _ 0.00 EA 1200.00 -- e------- BENCHES TRASH RECEPTICALS 0.00 EA -- 0.00 EA 0.00 L.S. 2.00 M2 0.00 M2 0.00 M2 -- 2.00 M2 1.12 M3 0.17 EA BIKE RACKS SIGNAGE CONCRETE SIDEWALK ----- ,=_RECAST PAVERS (PEDESTRIAN) PRECAST PAVERS (VEI-!ICULAR) CONCRETE SIDEWALK (2.0m WIDT TOPSOIL 12. TREES ---- 1------ ----- -- ---~- ----~-------------- SODDING _~.5q-1--- M2 800.00 400.00 ---- 45.00 85.00 95.00 45.00 20.00 450.00 - 2.50 -~------ -- SUB-TOTAL STREETSCAPE CONSTRUCTION _ _______ ____________ ______u__ __ ___________~--------------- ____u ---- I---~ ---- e------~~-- --- ----------- f----- _~ _________ 1----- _~______ fontingencies ___ 10.00% ______ _~_ Design ______ 7.00% ____ _ Contract Administration _- ~10.00% _ ___I-~__ TOT ~L STR~~,.SCAP~___ ___ ___ __ Pius 5% 2006 Cost Estimate --- ------- $0.00 ----------- $0.00 -- $0.00 $0.00 $0.00 -- $90.00 $0.00 --~- $0.00 $90.00 u $22.33 -- $74.35 -- $13.75 $455.43 --- ------- ------- --- -- w ~ :E i= en w t- <en wO 0::0 <Z Z..JO O<i= ....0::0 C)....w zZen o::wo <0<( ...JZo O<(~ u.:E...J O....~ ~ffi::J :::i3:~ <(wZ e:..J0 O..J- _-en z>z ::Jzw :E<t( :Ew 3:0 0<( mo ~ en Z w > W t- en Q) C.) ... ~ o U) 0) c: '0 c: ~ u.. c: ... 0 Q) .- 0.- o ::::J -.Q Q) 'C >- Q) e C 0 o e o - . 1:>>0 e , 'C C .!!! o cClliU1ii O).!!! -0 00 .- C.) ~e"" o ~ 0) e Q) c: ~ 0. "Cg~_ .a0J!)~ g ~ ~ 0 .. e ... ~ 's en 0'0 Q)<('CU) ... - e 0 d)~IVO :E1:~E ... 0 IV ... Q)ooo 0.. O::en '0=_ IVI:>>E oe_ 0:: Q) ..J ,... o ~ 0. 'C C.) CIl Q) C ;: o ~ 0) c: .. CIl 'x Q) Q)'O .c ... - nl 0)> c:o!!! o ::l - 0 nl_ 'Om nl c: o 0 ~- CIl ~ e .- Q) ... >..!!! ,SO U) 0 -- 0'0 c: IV o 0 ~~ C.) c: ~ Q) .b ~ :gC) o E C.) 0 Q) ... 0::.... 'V 'V CD ...... N C") fFT L() U') (J) fFT o (J) N fFT L() CD CD fFT OC! CD C") C") "0 > co c: o - C) c: .;:: ro U o - "0 0::: c: Q) Q) ... <.9 'V 'V CD. ...... N ('I') fA- 1.0 o o ~ <'l 0; nl - o t- '0 c: nl ... C) J: rn l- i f!. e! i:C a: "0 a: III co Cll > Cll o III III Ql co "in :::> ~ III E Ql E :::> u o Cl >- ~ o <l:: ~ >- co o I::: lJl E Ql E :::> u o Cl >- ;; o u "'" lJl Ol co E Cll (/l "0 co <1l lJl E Cll E :::> o o 9 o 21-Sep-05 MUNICIPALITY OF CLARINGTON BOWMANVILLE WEST MAIN CENTRAL AREA UNIT COST PER METRE TO CONSTRUCT STEVENS ROAD RURAL ROAD SECTION Item Spec. Description of Item Estimated Unit Unit Price Total No. No. Quantity ROADS & STORM SEWERS 1. SITE PREPARATION -...-- ---- ---- $10.00 2. 0 EARTH EXCAVATION (1m depth) 10.90 CU.M. 8.00 $87.20 3. GRANULAR 'A' (150mm) 3.76 T 18.00 $67.72 4. GRANULAR 'B' (450mm) 11.87 T 12.00 $142.44 5. 0 40mm HL3 1.02 T 65.00 $66.57 6. 80mm HL8 0.75 T 57.00 $43.01 7. CURB & GUTTER 0.00 M 45.00 $0.00 8. SUBDRAIN 0.00 M 1.00 $0.00 9. STORM SEWER PIPE 0.20 M 200.00 $40.00 10. CATCH BASINS 0.01 EA 1800.00 $14.40 11. CATCH BASINS LEADS 0.04 M 125.00 $4.75 12. STORM SEWER MANHOLES 0.01 EA 4000.00 $20.00 13. AUXILARY LANES AT INTERSECTIC 0.00 M 225.00 $0.00 TOTAL ROADS & STORM $496.09 USE $500.00 Contingencies 10.00% $49.61 Design 7.00% $34.73 Contract Administration 10.00% $49.61 TOTAL ROADS AND STORM $630.03 Plus 5% 2006 Cost Estimate $665.00 21-Sep-05 MUNICIPALITY OF CLARINGTON BOWMANVILLE WEST MAIN CENTRAL AREA STEVENS ROAD STEETSCAPE TREATMENT - RURAL ROAD SECTION Item Spec. Description of Item Estimated Unit Unit Price Total No. No. Quantity STREETS CAPE 1. DECORATIVE STREET LIGHTS 0.03 EA 5000.00 $165.00 2. TREE GUARDS 0.00 EA 400.00 $0.00 3. TREE GRATES 0.00 EA 800.00 $0.00 4. BENCHES 0.00 EA 1200.00 $0.00 5. TRASH RECEPTICALS 0.00 EA 800.00 $0.00 6. BIKE RACKS 0.00 EA 400.00 $0.00 7. SIGNAGE 0.00 L.S. ---- $0.00 8. CONCRETE SIDEWALK 0.00 M2 45.00 $0.00 " 9. PRECAST PAVERS (PEDESTRIAN) 0.00 M2 85.00 $0.00 10. PRECAST PAVERS (VEHICULAR) 0.00 M2 95.00 $0.00 11. CONCRETE SIDEWALK (2.0m WIDTH) 0.00 M2 45.00 $0.00 11. TOPSOIL & SOD 10.00 M2 5.00 $50.00 12. TREES 0.00 EA 450.00 $0.00 SODDING (See Above) 0.00 M2 2.50 $0.00 SUB-TOTAL STREETSCAPE CONSTRUCTION $215.00 Contingencies 10.00% $21.50 Design 7.00% $15.05 Contract Administration 10.00% $21.50 TOTAL STREETSCAPE $273.05 Plus 5% 2006 Cost Estimate $290.00